Bradham v. State

• Decision Date: 14 November 1978
• Docket Number: No. 56504,56504
• Parties: BRADHAM v. The STATE.
• Court: Georgia Court of Appeals

Page 801

250 S.E.2d 801

148 Ga.App. 89

BRADHAM v. The STATE.

No. 56504.

Court of Appeals of Georgia.

Argued Sept. 19, 1978.

Decided Oct. 25, 1978.

Rehearing Denied Nov. 14, 1978.

Larsen & Lewis, W. W. Larsen, Jr., H. G. Bozeman, Dublin, Robert H. Cofer, II, Thomson, for appellant.

Beverly B. Hayes, Dist. Atty., James Stanley Smith, Jr., Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Voluntary manslaughter. The appellant, Patricia Bradham, was convicted of killing her divorced husband by shooting him fatally three times with a .38 caliber pistol. She raises sixteen enumerations of error. Held :

1. In her first enumeration, appellant raises the sufficiency of the evidence to support the conviction. Ms. Bradham does not dispute that she shot her husband but urges that she acted in defense of herself and her children and alternatively, in defense of her domicile. The evidence was in dispute as to whether Ms. Bradham acted in anger and intentionally out of that anger as well as frustration or in defense of person or habitation. We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury's verdict. Wren v. State, 57 Ga.App. 641, 644, 196 S.E. 146; Mills v. State, 137 Ga.App. 305, 306, 223 S.E.2d 498. Where the testimony of the state and that of the defendant is in conflict, the jury is the final arbiter (Crews v. State, 133 Ga.App. 764, 213 S.E.2d 34; Sims v. State, 137 Ga.App. 264, 223 S.E.2d 468), and after the verdict is approved by the trial court, the evidence must be construed so as to uphold the verdict even where there are discrepancies. Glover v. State, 237 Ga. 859, 860, 230 S.E.2d 293. The evidence in this case is amply sufficient to support the verdict of guilty of voluntary manslaughter. This enumeration is without merit.

2. Ms. Bradham complains in her second enumeration of error that the trial court gave a confusing charge on the defense of justification by combining the charge on defense of person and defense of habitation, during the course of which the court omitted critical elements of those defenses. The record does not support this contention. The trial court gave full instructions, in separate segments, on the affirmative defense of self-defense and defense of habitation. These instructions were received without complaint and are basically in the language of the applicable statutes. After giving these complete and legally appropriate charges, the trial court summarized, giving the substance of the previous charges on justification. It is this summary that is the subject of the enumeration of error.

When a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as possible, a reviewing court will not disturb a verdict amply authorized by the evidence. Todd v. Fellows, 107 Ga.App. 783, 131 S.E.2d 577. There is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence. Thomas v. Barnett, 107 Ga.App. 717(5), 131 S.E.2d 818. While the specific portion of the charge of which complaint is made when torn asunder and considered as a disjointed fragment may be objectionable, when put together and considered as a whole, the charge is perfectly sound. Mendel v. Pinkard, 108 Ga.App. 128, 134, 132 S.E.2d 217; Jones v. Tyre, 137 Ga.App. 572, 574, 224 S.E.2d 512; Hobart Bros. v. Malcolm T. Gilliland, Inc., 5 Cir., 471 F.2d 894. See Womack v. St. Joseph's Hospital, 131 Ga.App. 63, 205 S.E.2d 72; Merritt v. State, 110 Ga.App. 150, 153, 137 S.E.2d 917. Appellant at the conclusion of the charge refused to specify any part of the charge that was deemed to be inaccurate or inappropriate. Instead the appellant generally objected to each and every part of the charge. This does not inform the court as to that part of the charge that counsel deems incorrect thus does not give the trial court an opportunity to clarify or correct portions of the charge that may be objectionable. See A-1 Bonding Service v. Hunter, 125 Ga.App. 173, 179(4), 186 S.E.2d 566. While present law exempts the defendant in a criminal trial from the strict requirements imposed on litigants in civil cases to preserve an issue on the giving or the failure to give instructions (Ga.L.1968, pp. 1072, 1078 (Code Ann. § 70-207)), this does not relieve him from the necessity of requesting clarifying instructions or making clear his objection so that the trial court can exercise the opportunity to correct possible errors at the most opportune point in the proceedings and thus still subject to review by an appellate court. See Spear v. State, 230 Ga. 74, 75, 195 S.E.2d 397; Sanders v. State, 138 Ga.App. 774, 227 S.E.2d 504. This enumeration likewise lacks merit.

3. In her third enumeration of error, Ms. Bradham asserts the trial court erroneously denied a challenge for cause against a juror, requiring her to utilize one of her peremptory challenges needlessly. The juror in question answered a question to the effect that because he had three sons who were law enforcement officers in another county, he would be inclined to give more credence to a police officer's testimony, than to a non-police witness. No further question was asked of this juror by the defendant though there is no indication of record that she was precluded from doing so. The juror had previously been asked if he were perfectly impartial as between the state and the defendant and had answered that question in the affirmative. The defense did not explore whether the witness could not set aside any potential bias following an oath to act impartially and the charge of the court. On its face then, the record indicates the witness was statutorily qualified, but subject to possible challenge. Sullens v. State, 239 Ga. 766, 767, 238 S.E.2d 864. (But see Davis v. State, 241 Ga. 376, 382(4), 247 S.E.2d 45). Defendant utilized all twenty of her peremptory challenges and the last two jurors were selected without benefit of further peremptory challenges. Nevertheless, defendant did not show that the last two jurors were in any way disqualified. So far as the record shows, the defendant was adjudged by a jury of twelve well-qualified jurors. Thus, even assuming arguendo, that it was error to refuse to excuse the juror for possible bias the questionable juror did not serve and appellant has not shown that such possible error was not harmless. See Hinson v. Dept. of Transp., 135 Ga.App. 258, 217 S.E.2d 606. The purpose of voir dire is to guarantee a defendant a fair trial by twelve impartial jurors. The record reflects that that is exactly what the defendant received. She was entitled to no more. Hill v. Hospital Authority, 137 Ga.App. 633, 636, 224 S.E.2d 739.

4. The fourth through sixth enumerations of error complains of the refusal to grant motions for mistrial. It is alleged that the court erroneously allowed five rebuttal witnesses to testify for the state who were not listed on the list of witnesses demanded by the defendant and furnished by the state. Four of these witnesses were called only after the appellant had testified as to the violent character possessed by the deceased and were called for a limited purpose as rebuttal witnesses to show that the deceased possessed a peaceable and law-abiding character. While the fifth witness had been available from the first day of the multiple day trial, he too was called only in rebuttal as a character witness. Appellant argues that she was not allowed to interview the witnesses prior to their testimony. However, the record shows that appellant did not simply request the opportunity to interview the witnesses, but in fact requested a continuance so that the defense could investigate the background of each witness as well as interview them.

It is the law of this state that the calling of rebuttal witnesses whose names do not appear on the witness list does not constitute error. Mize v. State, 240 Ga. 197, 199, 240 S.E.2d 11; Hearn v. State, 145 Ga.App. 469, 470, 243 S.E.2d 728. We will not speculate what the court's ruling would have been had appellant requested merely the right to interview the witnesses, but find it sufficient to conclude that it was not an erroneous exercise of discretion to deny an indeterminate continuance where the matter involved witnesses in rebuttal only. Pulliam v. State, 236 Ga. 460, 462, 224 S.E.2d 8.

5. Appellant complains in her seventh enumeration that it was error to allow the state to waive its opening argument. The appellant urges that by waiving opening argument, the defendant is denied the right to rebut the arguments advanced by the state while the state has the unfair advantage of rebutting the arguments advanced by the defendant. She would seek to limit argument by the state in such circumstances to matters in rebuttal only and not a full and ranging argument on all issues by the state.

We note initially that, in most jurisdictions, it is...